Employment Law In A Nutshell

With regards to employment, all states adhere to some variation of the "at-will" employment doctrine. In the absence of an employment agreement, this doctrine states that a company can legally discharge an employee at any time and for any reason – or no reason at all – so long as the motivating factor is not illegal. In other words, under most circumstances, it is legally permissible for an employer to arbitrarily terminate employees without cause and without warning.

The Fourteenth Amendment explicitly prohibits states from violating an individual's rights of due process and equal protection. Equal protection limits the State and Federal governments' power to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group, like a race, religion or sex. Due process protection requires that employees have a fair procedural process before they are terminated if the termination is related to a "liberty," like the right to free speech, or a property interest.

The Wages and Hours Act of 1938 set the maximum standard work week to 44 hours, and in 1950 this was reduced to 40 hours. Despite the 40-hour standard maximum work week, some lines of work require more than 40-hours to complete the tasks of the job. For example, if you prepare agricultural products for market you can work over 72 hours a week, if you want to, but you cannot be required to work over 72 hours. Professionals, clerical (administrative assistants), technical, and mechanical employees can not be terminated for refusing to work more than 72 hours in a work week.

The Age Discrimination in Employment Act of 1967 prohibits employment discrimination based on age with respect to employees 40 years of age or older. This Act was created to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment because in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs; the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons; the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is high among older workers; their numbers are great and growing; and their employment problems grave; and the existence of arbitrary discrimination in employment because of age is a growing problem.

Title VII of the Civil Rights Act is the principal federal statute with regard to employment discrimination prohibiting unlawful employment discrimination by public and private employers, labor organizations, training programs and employment agencies based on race or color, religion, sex, and national origin. Retaliation is also prohibited by Title VII against any person for opposing any practice forbidden by statute, or for making a charge, testifying, assisting, or participating in a proceeding under the statute. The Civil Rights Act of 1991 expanded the damages available to Title VII cases and granted Title VII plaintiffs the right to jury trial. See http://www.eeoc.gov/policy/vii.html.

Employment discrimination refers to discriminatory employment practices such as bias in hiring, promotion, job assignment, termination, and compensation, and various types of harassment. The Federal Government prohibit employers from discriminating on the basis of race, color, sex, religion, national origin, physical or mental disability, or age. There is also a growing body of law preventing or occasionally justifying employment discrimination based on sexual orientation or gender identity.

In Florida employment law not covered by Federal Statutes can be found in Florida Statutes, Chapters 435, 440, 441, 443, 445, 446, 447, 448 and 450. See http://www.leg.state.fl.us.

Although laws and regulations prohibit discrimination on the basis of race by the employer, statistics show that racial discrimination in the workplace still exists. At any given education level, whites in the United States receive a higher income than minorities. Although income disparities may be partially explained by differences in human capital, an earnings gap between races of the same educational attainment shows that discrimination still exists. It may be difficult to find an employer that is overtly racist, in the sense that white workers are systematically paid more than minority workers. However, the earnings gap that still exists after accounting for quantity of schooling can be largely explained by institutionalized discrimination.

Corporations that compensate their workers with high salaries rely on existing employees to help hire new employees. When new positions open up, workers find family members and friends who want the position. If a corporation is already predominantly composed of white workers, in turn, it is likely that the corporation will continue to hire more white workers through such “word-of-mouth” practices. Such hiring practices are logical, as they are not illegal, and they are efficient in that they incur no costs. Although minority group members may exist that possess qualities and accomplishments that make them well-suited for a given job, they are not as well intertwined in the social networks of high-paid corporate employees. As these hiring practices are developed, racism becomes institutionalized. In other words, no single individual can be blamed.

Additionally, statistical discrimination may be responsible for the some of the wage gap between equally-educated whites and minorities. An employer will not know how well a prospective employee will perform on the job until it has actually hired the employee. On average, white workers have more skills and experience than their minority counterparts. In turn, if an employer must make a quick decision between a pool of candidates with the same educational attainment, he or she may choose the prospective white employee over the prospective hispanic or black employee on statistical grounds.

Human nature may be another reason for the wage gap that exists between equally-educated white males and other categories of worker. People like to be around other people that are similar to themselves. Unfortunately, since the recruiters for high-paying jobs are most often white males, this means that white males employees are more likely to be hired. It is now common practice by many employers to couch the reason to a job applicant as to why he or she was not hired in the vaguest possible terms, such as team dynamics, a common phrase given being "we have a 'gut feel' you will not work out on our team". Some employers will no longer even provide a reason for rejection, the application if rejected is simply not contacted after the interview with anything other than a form rejection letter.

Although impossible to test, it is still widely believed that overt discrimination in the workplace on the basis of race still exists. Unfortunately, it is very difficult to prove that an employer is using such practices, as it is easy for the employer to say that other characteristics of potential employees were used to make a decision that was actually racist.

Employers who are knowledgeable, practice the following procedures to diminish employment discrimination, harassment and retaliation cases.

a) Terminate employees only for cause. While "at-will" employment is the rule, the prudent company terminates employees only for good cause, i.e., some explanation that a "reasonable" person would find acceptable. Few actions induce a jury to question a company’s motivations more than when an employer disciplines or terminates an employee for no apparently good reason.

b) Establish an anti-harassment, anti-discrimination policy. An anti-harassment, anti-discrimination policy is a defense to a discrimination claim. Any anti-harassment, anti-discrimination policy must be publicized, through writing and training of all employees. The company must enforce the policy consistently against anyone who violates it. An employee who fails to utilize a well-publicized policy will find it difficult to impute liability to the company for sexual harassment.

c) Investigate complaints quickly. The company should have an investigation plan in place. The people performing investigations should be properly trained. A prompt and thorough investigation of a complaint or rumor, establishes a company’s good faith efforts to eliminate discrimination. A prompt and thorough investigation may insulate a company from liability.

d) Follow-Up on complaining employees of discrimination or harassment. Increasingly, employees feel they are being retaliated against for bringing a complaint. Five to ten weeks after completion of an investigation, a company should have a follow-up meeting with the employee. Follow-up information can effectively combat retaliation claims. The best defense to a retaliation claim is consistency in discipline, whether the same discipline has been imposed in the past for similar infractions. For this reason, review of disciplinary decisions by the human resources department is an excellent procedure to have in place.

e) Use a progressive discipline policy. Employees are given opportunities to correct problem behavior before the employer takes drastic action. Progressive discipline policies eliminates an employee’s ability to claim harassment or discrimination. An employee terminated after repeated warnings will have a hard time convincing anyone that an employer’s real motivation was discrimination or harassment. A company failing to follow a progressive discipline policy may support an employee’s claim of discrimination or harassment. At the least, lack of a policy will question the company’s motives for termination.

f) Give balanced, honest performance evaluations. Lop-sided performance reviews are the bane of every employer. Why a particular employee, evaluated positively for years, was chosen for termination or layoff instead of contemporaries, who fit into the preferred gender/racial/ethnic/age category. It is virtually impossible to explain away a series of positive evaluations when arguing that the employee was disciplined or terminated for performance deficiencies. Such action raises questions as to the company’s real motivation. Managers must receive training on how to evaluate employees properly. Managers must include weaknesses, as well as strengths, in the yearly evaluations. Employees must learn that criticism in a yearly review presents an opportunity to improve.

g) Perform exit interviews for departing employees. An exit interview is a prime opportunity to learn of possible harassment, discrimination or retaliation problems and note the absence of any. It will show the company gave the employee the opportunity to report improper workplace conduct.

h) Be consistent. It should go without saying that acting in a manner inconsistent with company policies, or contrary to similar situations, will question the company’s motivations. It is for this reason that an employee handbook should never contain a policy that management is not fully dedicated to abiding by and enforcing. Consistency establishes precedent by which later discipline is measured.

i) Document everything. Documents evidence the fact that the employer took a complaint seriously. Documents are more effective than live testimony regarding when and what events occurred. Even casual discussions with the employee about a problem should be memorialized. A review of the employee’s file should show the employee was made aware of the problem and given a chance to correct it.

This outline gives a summary of employment law in Florida. There are many factors that would affect the timing and approach to employment law proceedings. There are alternative ways to resolve your employment issues, ranging from an inexpensive consultation, to mediation, to litigation. For specific information directed to your situation please contact this office at your convenience.